BC’s IVF Funding Policy 2025: Legal Challenges and Discrimination Issues

I had hoped there would be no age restrictions in BC’s IVF funding program, recognizing that fertility and family-building don’t follow arbitrary timelines. Research shows that age-based restrictions in fertility care perpetuate systemic ageism, particularly against women. While male fertility also declines with age, men face no equivalent restrictions under this policy.

When BC imposed a strict age cap of 41 for the person receiving the embryo transfer, I viewed this policy as inherently gendered. While the language is more inclusive than most policies in Canada, referring to the “applicant receiving the embryo transfer,” it does little to improve actual access or affordability for the TGNC community.

By enforcing this age limit, BC effectively forces many patients—particularly women and TGNC individuals—to pursue costly surrogacy or international treatment to use their embryos. It also limits options for gay or single men seeking an altruistic surrogate; if their chosen surrogate—often a friend or family member who has finished having children—is over 41, they’re pushed to seek alternatives.

This disproportionate impact on women and gender-diverse individuals could constitute indirect gender discrimination. Patients affected by the age cap may have grounds to challenge this policy under Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Exclusion of Single and TGNC People: A Legal and Human Rights Concern

British Columbia’s IVF funding framework centres on “traditional” family structures, failing to account for single individuals and trans and gender non-conforming (TGNC) people. This exclusion particularly harms those seeking fertility preservation—such as trans individuals undergoing gender-affirming treatment—and non-binary or gender-diverse people who require assisted reproduction for family building.

In his 2025 paper, Expanding BC’s New Publicly Funded IVF Program to TGNC People, Peter A. Allard School of Law (University of British Columbia) student Benjamin Foucault offers several recommendations to address this exclusion:

• Clarify Eligibility Language: Amend the program to explicitly state that TGNC individuals, regardless of legal gender marker, medical history, or relationship status, are eligible for funded care.
• Redefine Infertility: Expand the program’s definition of infertility to include hormone therapy-induced infertility, recognizing it as a medically foreseeable consequence of gender-affirming care.
• Fund Fertility Preservation: Cover fertility preservation as a medically necessary component of gender-affirming care, not an elective service.
• Require Trans-Affirming Practices: Mandate that participating fertility clinics adopt trans-affirming policies and practices, aligning with Candace Bond-Theriault’s Queering Reproductive Justice Framework (QRJF), which calls for dismantling cisnormative assumptions in reproductive healthcare.
• Address Cost Barriers: Recognize that financial barriers disproportionately impact TGNC people, necessitating additional supports beyond what the current policy provides.⁷

As Foucault emphasizes, the medical erasure of TGNC people occurs when reproductive policies are designed around cisgender and cisheteronormative assumptions, excluding non-traditional families from critical healthcare services and the lack of clinical guidelines specific to TGNC reproductive needs further compounds access challenges.

As it stands, the public IVF funding program’s systemic barriers contradict British Columbia’s stated commitments to gender equity and human rights. This could have serious legal and political implications for the Ministry of Health.

While gender identity is not explicitly listed, Canadian courts recognize analogous grounds—characteristics that are either immutable or constructively immutable and historically subject to discrimination. Sexual orientation and marital status are already protected under Section 15. In cases such as Miron v Trudel, the Supreme Court of Canada outlined the framework for analogous grounds, which could foreseeably extend to gender identity in future rulings.⁸

In Hansman v Neufeld (2023 SCC 14), the Supreme Court acknowledged the significance of protecting gender-diverse identities. However, it stopped short of recognizing gender identity as a distinct analogous ground under Section 15. However, this remains an evolving area of constitutional law.

In addition, BC’s Human Rights Code explicitly prohibits discrimination based on gender identity and expression in the provision of services, including healthcare. Excluding TGNC individuals from IVF funding is arguably inconsistent with both statutory human rights protections and the province’s obligations to ensure substantive equality under the Charter. As a fertility lawyer, I see firsthand how policies like this deepen inequity and undermine Canada’s commitment to equality.

How the Tokyo Declaration Strengthens Legal and Human Rights Challenges

BC’s IVF funding policy does not operate in a legal or ethical vacuum. Globally, there is growing consensus that fertility care is a fundamental human right and must be provided without discrimination based on race, gender identity, sexual orientation, or family status. Canada’s own international human rights obligations reinforce this principle.

• Article 16(1) of the Universal Declaration of Human Rights
• Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR)

In 2025, Canada further underscored its commitment by participating in the International Federation of Fertility Societies’ Tokyo Declaration on Reproductive Health and Human Rights. This declaration:

• Recognizes fertility care as a fundamental human right.
• Calls for universal health coverage for fertility care.
• Emphasizes the inclusion of diverse family structures.
• Reinforces that access must be free from discrimination based on race, gender, sexual orientation, or family structure.

Although the Tokyo Declaration is not legally binding, it reflects internationally recognized human rights standards that can support both policy advocacy and legal challenges. Canada’s obligations under the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) provide a binding framework that underpins the Declaration’s principles.

While the Canadian Human Rights Act and provincial legislation guide BC’s Human Rights Tribunal decisions, international instruments like the Tokyo Declaration can play a persuasive role in:

• Demonstrating global norms and health equity standards.
• Reinforcing that reproductive health is a human rights issue, especially for marginalized communities.
• Supporting courts in interpreting Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equality rights.

For patients excluded from BC’s IVF funding, the Tokyo Declaration provides an additional layer of moral and legal argument. Citing the Declaration’s principles may strengthen Charter challenges or human rights complaints, highlighting that current provincial policies fall short of global ethical and human rights benchmarks. From a legal perspective, this policy creates a real risk of future Charter and human rights challenges.

BC had the opportunity to reimagine fertility healthcare through direct billing, coverage of third-party legal costs, and ensuring equitable access regardless of income. Instead, it has become the first Canadian province to restrict IVF funding based on household income, with your combined income with your partner(s) considered. Patients must now submit tax assessments to determine eligibility. Worse, this last-minute “means testing” blindsided many who had waited over a year for funding, only to discover they might be excluded. Until July 2nd, there was no public indication that the promised $19,000 per cycle would be income-restricted.

For patients in BC’s high-cost regions, particularly Greater Vancouver, this policy disproportionately excludes families who still struggle to afford IVF. The cost of living in BC does not factor into the eligibility formula, making the funding limits arbitrary and inequitable.

Combined Income Eligibility Breakdown:

• $0 – $100,000: $19,000 funding

• $100,001 – $150,000: $14,250 funding

• $150,001 – $200,000: $9,500 funding

• $200,001 – $250,000: $4,750 funding

• $250,001+: Not eligible

Means Testing: Does It Belong In Universal Healthcare?

Funding decreases as household income rises, but patients receive no upfront relief regardless of income. In most cases, the treatment costs must be paid out-of-pocket initially; if approved, a credit will be applied later. This structure excludes legal fees for surrogacy, donor sperm or eggs, and surrogacy-related costs entirely (their expenses, not medical treatment).

The issue of means testing in healthcare has garnered wider attention recently. A recent Canadian Affairs article titled “Does Ottawa’s Dental Care Discriminate Against Couples?” examined whether means testing has a place in universal healthcare, raising concerns about so-called “marriage penalties” and the failure to account for regional cost-of-living disparities.

Legally, BC’s income thresholds are not inherently unlawful. However, their opaque introduction, lack of transparency in design, and exclusion of middle-income families could form part of a broader Section 15 Charter challenge, particularly when combined with the plan’s other exclusionary elements. As a leading constitutional law expert, Dr. Kerri Froc, Professor at the University of New Brunswick Faculty of Law, noted in that same article, such challenges may face difficulty:

“I think you would have your work cut out for you to show that this is discriminatory versus just reflecting the fact that when you’re in a spousal relationship, there’s going to be some pooling of resources.”

In my view, the current income-based model overlooks the numerous factors that contribute to higher IVF costs for certain groups. A gay couple needing both an egg donor and a surrogate, or a transgender patient pursuing fertility preservation, will inevitably face far greater expenses, through no fault of their own.

BC’s funding approach assumes all patients have the same basic needs and financial means. They don’t. In effect, this policy penalizes not just wealth, but difference.

Rural Patients Left Behind

BC had an opportunity to lead by supporting underrepresented and rural communities through targeted investments, such as travel support, mobile fertility clinics, and rural outreach services. Instead, these communities have been largely ignored.

The current IVF funding program does not cover travel or accommodation costs, leaving patients to navigate these expenses on their own. Patients are directed to the Travel Assistance Program (TAP), a separate service that functions more like a shuttle and requires a doctor’s note. TAP limits patients to the nearest participating clinic, which may not be the facility where their treatment has already begun or where their embryos are stored. This creates logistical and financial barriers for rural and remote patients, particularly those in northern and Indigenous communities.

Currently, BC’s IVF program funds treatments only at clinics located in Vancouver, Burnaby, Surrey, Kelowna, and Victoria, leaving large geographic areas of the province without reasonable access to funded care. For many, this means hours of travel, multiple overnight stays, and significant out-of-pocket costs that urban patients are far less likely to face.

While challenging geographic disparities legally is complex, the absence of travel and accommodation coverage arguably undermines equitable access to publicly funded healthcare, as required under BC’s provincial healthcare obligations.

This may be viewed as favouring urban populations while excluding rural communities.